LUU & XIA

[2013] FMCAfam 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUU & XIA [2013] FMCAfam 35

FAMILY LAW – Parenting – 4 year old girl – each party seeks sole parental responsibility – overseas travel – poor communication – Order made for sole parental responsibility.

Family Law Act 1975, ss.4, 60CC, 61B, 61DA

Applicant: MS LUU

Respondent: MR XIA

File Number: SYC 6789 of 2009

Judgment of: Sexton FM

Hearing dates: 19, 20, 22 November 2012

Date of Last Submission: 22 November 2012

Delivered at: Sydney

Delivered on: 25 January 2013

REPRESENTATION

Counsel for the Applicant: Ms M. Barnett

Solicitor for the Applicant: Marsdens Law Group

Respondent: In person

Counsel for the Independent Children’s Lawyer Mr C. Sperling

Solicitor for the Independent Children’s Lawyer KDB Holmes Solicitors

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

Parental Responsibility

1. The Mother have sole parental responsibility for the child [X] born [in] 2008 (“[X]”).

2. Without derogating from the meaning of sole parental responsibility, in considering a decision about a major long-term issue in relation to [X]:

   (a)The Mother advise the Father by email transmission (to an electronic address nominated by the Father) of her proposal relating to [X] and her reasons for such proposal;

   (b)If the Father wishes to comment on the Mother’s proposal, he shall, within fourteen (14) days after the date on the Mother’s email transmission, advise the Mother by email transmission (to the address from which the Mother sent her communication) of his views;

   (c)Upon receipt of any comment or proposal by the Father, the Mother shall give consideration to his views; and

   (d)After the Mother has considered the Father’s comments, she shall make a decision and electronically advise the Father of the outcome immediately after making that decision, with her reasons for decision. 

   (e)The Mother shall provide the Father with all relevant information arising from the decision, including with respect to [X]’s health care, the names and contact telephone numbers of professionals treating her, and with respect to education, the name and contact details of the educational institution.

3. For the purpose of Order (3), if the Father does not electronically respond as provided by paragraph (3)(b), the Mother shall be entitled to presume that the Father does not wish to be involved and she may decide the issue without input from the Father.

4. The Mother shall communicate to the Father by email transmission:

   (a)Advice as to hospital, medical, dental or health professional appointments for [X];

   (b)Any advice as to medication being administered to [X], and the Father may attend any appointment with any hospital, medical practitioner, dental health practitioner or other health professional relating to [X].

5. Each party be otherwise responsible for [X]’s day to day care, welfare and development when in that party’s care. 

Live with arrangements

1. [X] live with the Mother.

Spend time with arrangements during school terms

1. [X] spend time with the Father during school terms as follows:

   (a)If the Father is available to collect and/or return [X] from and/or to child care, pre-school or school:

   i)In Week 1, from the end of child care, pre-school or school on Thursday until the commencement of child care, pre-school or school on Friday noting that the Father will collect from day care at 4.30p.m. if working, and 3.30p.m. if not working and deliver to daycare by 9.30a.m.; and

   ii)In Week 2, from the end of child care, pre-school or school on Friday until the commencement of child care, pre-school or school on Monday noting that the Father will collect from day care at 4.30p.m. if working, and 3.30p.m. if not working and deliver to daycare by 9.30a.m. 

   b)If the Father is unable to collect and/or return [X] from and/or to child care, pre-school or school on any contact occasion, the Father to give the Mother as much notice as practicable, but at least 24 hours notice, and [X] spend time with the Father as agreed between the parties when changeover will take place at the entrance to Woolworths in [omitted] Shopping Mall.

2. [X]’s single overnight time with the Father recommence in the first week of each school term and her weekend time with the Father recommence in the second week of each school term. 

Spend time with arrangements during school holidays

1. [X] spend time with the Father during school holidays as follows:

   (a)From 30 June 2013 until the end of January 2014, [X] spend up to 4 nights in July, October and December 2013, with such additional nights to coincide with the time [X] would normally spend with the Father during school terms, and in the absence of agreement as to precise times, being the 4 nights from the Friday of her first usual weekend with the Father in the school holiday period in July, October and December.

   (b)[X]’s time with the Father in accordance with Order (10)(a) is conditional on:

   (i)The Father being personally available to care for [X] during those periods; and

   (ii)The Father providing the Mother with at least 3 weeks written notice of his intention to have the extra time with [X], when the Mother will respond to the Father within 7 days of such notice.

   (c)From the end of January 2014 until the end of Term 4 2014, [X] spend up to 5 nights with the Father in each school holiday period, with such additional nights to coincide with the time [X] would normally spend with the Father during school terms, and in the absence of agreement as to precise times, being the 5 nights from the Friday of her first usual weekend with the Father in the school holiday period in April, July and October 2014. 

   (d)From December 2014, in all Christmas school holiday periods, subject to Orders (10)(e) and (11) below, [X] spend two periods of 7 days with the Father, provided that the Father is available to care for [X] during those periods, and in the absence of agreement between the parties, being from the first Sunday after Christmas Day at 4.00p.m. until the following Sunday at 4.00p.m. and the week ending on the second last Sunday of the school holidays at 4.00p.m. 

   (e)[X] spend time with the Father from 9.00a.m. on Christmas Eve until midday on Christmas Day in 2014, and in alternate years thereafter, and from midday Christmas Day until 6.00p.m. on Boxing Day in 2013 and alternate years thereafter.

   (f)[X] spend 7 days with the Father in each short school holiday period from the end of Term 1 in 2015, being the 7 days commencing at midday on the first Saturday of the school holiday period, if not otherwise agreed. 

   (g)From the end of Term 4 in 2014, school term time contact be suspended during all school holiday periods. 

2. [X] spend time with the Mother from 9.00a.m. on Christmas Eve until midday on Christmas Day in 2013, and in alternate years thereafter, and from midday Christmas Day until 6.00p.m. on Boxing Day in 2014 and alternate years thereafter.

Spend time with arrangements on special days

1. [X]’s time with the Father be suspended from 10.00a.m. on Sunday of the Mother’s Day weekend. 

2. [X] spend time with the Father on Father’s Day from 10.00am until Monday before school if [X] is not otherwise with the Father on that weekend.

3. On [X]’s birthday:

   (a)In odd numbered years, [X] spend time with the Father from 10.00am to 6.00pm if the day is not a child care, pre-school or school day, and if the day is a child care, pre-school or school day, from after child care, pre-school or school until before child care, pre-school or school the following day;

   (b)In even numbered years, [X] spend time with the Mother from 10.00am to 6.00pm if the day is not a child care, pre-school or school day, and if the day is a child care, pre-school or school day, from after child care, pre-school or school until before child care, pre-school or school the following day.

4. [X] spend time with each parent at other times by agreement in writing between them, on condition that, unless an emergency, [X] does not spend increased time with the Father during the school term.

[X]’s health care

1. Unless an emergency, the Father consult General Practitioner, Dr W for [X] at [A] Medical Centre, or such alternative Practitioner nominated by the Mother noting that the Mother may change [X]’s GP if she moves from the area. 

2. In the event [X] suffers a serious medical condition or requires urgent medical attention whilst in the care of either parent, then the other parent is to be notified as soon as practicable.

[X]’s education

1. The Mother ensure the Father receives a copy of all information received by her from the school and keep the Father informed as to matters pertaining to [X]’s education.

2. The Mother advise the Father of all extra-curricular activities in which [X] is engaged from time to time, including the venues, days and times of those activities.

3. The Father be permitted to attend any school performance and/or sporting practice or event in which [X] is involved.

[X]’s overseas travel

1. The Mother be permitted to seek a passport for [X] without the consent or authority of the Father.

2. Until further order the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the Child [X] born [in] 2008 (female) from the Commonwealth of Australia. 

3. The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said Child from the Commonwealth of Australia.

4. Until further order the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Child names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

Communication between the parties

1. Each party keep each other informed as to their respective telephone number and/or mobile telephone number and to advise the other within 48 hours of any change of telephone number.

2. In the event either party is unable to care for [X] in accordance with these Orders, that party give the other party as much notice as possible by email or letter (in writing) to discuss arrangements for the care of [X].

3. Once the Mother has secured more permanent accommodation for herself and [X], the Mother advise the Father of her address forthwith.

4. The parties communicate by email unless an emergency when they will communicate by phone, and respond to emails within 48 hours noting that emails must be respectful and polite and relate only to issues concerning [X], and must be limited to 3 a week.

Prohibition

1. Neither party denigrate the other party in the presence and/or hearing of [X], or permit any third person to denigrate the other party in the presence and/or hearing of [X].

2. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Luu & Xia is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6789 of 2009

MS LUU

Applicant

And

MR XIA

Respondent

REASONS FOR JUDGMENT 

Introduction

1. [X], aged 4 years is the parties’ only child. The parties agreed at hearing that [X] will live with the Mother and spend 4 nights a fortnight with the Father as well as graduated block periods during school holidays. However, the parties have been unable to resolve the question of who should have parental responsibility for [X].

Background

1. The parties lived together for two and a half years. [X] was born in 2008 and the parties separated 11 months later.  [X] has always lived primarily with the Mother. She did not spend time with the Father for several months following separation. After commencing time with the Father on a supervised basis in a Contact Centre in early 2010, [X] has spent graduated increasing time with the Father. For the last approximately 12 months, she has spent four nights a fortnight with the Father, including a 3 night weekend and a single night in the other week. Although the Mother says [X] occasionally exhibits symptoms of stress on her return from the Father, generally [X] presents as a bright and happy child. 

2. Both parties were born in China. They met in Australia in November 2006, commenced a de facto relationship in December 2006, married in 2007 and separated in August 2009 when the Mother left the home with [X] with the assistance of police and moved to a women’s refuge.  The parties were divorced in late 2010. Both parties are permanent residents of Australia.  Neither party has other family in Australia and neither has re-partnered. 

3. The Mother, aged 32 years, is studying [omitted] at the [university omitted] and is not in paid employment. She relies on Centrelink benefits and modest child support payments from the Father. The Mother and [X] are living in community accommodation arranged through the women’s refuge. Upon completion of her course at the end of February 2013, the Mother plans to undertake a PhD if she is successful in obtaining a scholarship, or obtain employment. 

4. The Father, aged 39 years, is a self-employed [omitted]  who last had employment between May and July 2012.  Until then, he had been out of work since August 2011.  He describes the market as “very tough”.  He says he might have to return to China to obtain work. 

5. [X] has attended the same day care centre in [A] for 2 years, usually from 9.30 a.m. until 4.30 p.m. on four days a week.  [X] will start school in 2014.  The Mother intends to keep [X] at the same child care centre in 2013 and says if she is able to find employment, she will endeavour to find affordable accommodation in the [A] area.

Brief litigation history

1. The Mother initiated these proceedings for parenting and property orders in November 2009. The Mother sought orders providing for [X] to live with her, to spend time with the Father as agreed between the parties and an order for sole parental responsibility. On 1 December 2009, the Court placed [X]’s name on the airport watch list.  Later in December 2009, the Court made interim orders providing for [X] to live with the Mother. In January 2010, the Court made orders for [X] to spend time with the Father on a weekly basis for 2 hours at the Sydney Children’s Contact Service. In April 2010, with the consent of the parties, [X] commenced spending a few hours each Saturday with the Father, unsupervised, with changeover at a Contact Centre. In July 2010, as a result of an incident at the Contact Centre, the Court suspended [X]’s time with the Father pending further assessment by a family consultant. On 27 July 2010, as a result of the family consultant’s assessment, [X]’s time with the Father was reinstated. In July 2011, the Court noted that the parties had attended a child dispute conference with Ms K, and had reached an interim agreement in relation to [X] commencing overnight time with the Father. In September 2011, [X]’s time with the Father was increased to Friday to Monday on alternate weekends and one overnight in the alternate week.  An interim order was also made for the parties to have equal shared parental responsibility. Those arrangements continue. In relation to property, final orders were made by consent on 20 November 2012. 

2. Ms K, Family Consultant, prepared reports for the Court in July 2010, April 2011 and June 2012.[1] She prepared further memoranda for the Court in January 2010, August 2011 and September 2011. At the time of interview with Ms K in June 2012, the Mother proposed that the parties continue to share parental responsibility, that [X] continue to live with her, and that she spend time with the Father in accordance with the arrangements already in place. At that time, the Father proposed that he have sole parental responsibility for [X], that she live with him and that she spend time with the Mother as agreed between the parties from time to time. He said his parents would come from China to assist in [X]’s day to day care if she were living with him. 

   [1] Exhibit 1

3. As already noted, the parties agreed at hearing that the current live with and time arrangements will continue on a final basis, in accordance with Ms K’s recommendations. Ms K does not support any increase in that time in the future and neither party sought an increase. 

Issues

1. The sole question for determination is who will have parental responsibility for major decisions concerning [X], including but not limited to, the choice of [X]’s school, the choice of medical interventions for [X]’s health and development and arrangements for overseas travel.

2. The Mother seeks a sole parental responsibility order.  The Father seeks a sole parental responsibility order, or in the alternative, an order for equal shared parental responsibility with him having the authority to make the final decision if the parties cannot agree. 

3. The Independent Children’s Lawyer supports the Mother’s position, on condition that the Mother keeps the Father fully informed of the decisions the Mother proposes to make and considers the Father’s views. Ms K made the following comments on the issue[2]: 

   Currently, it seems that Ms Luu’s and Mr Xia’s beliefs about what is best for [X]’s future are so divergent that there is little common ground between them.

   …

   It seems unlikely that the parents will, in the foreseeable future, be able to develop the necessary communication strategies which would enable them to have equal shared responsibility for [X]. It is apparent that the parents continue to experience difficulty in reaching agreements with, it seems, Ms Luu often agreeing to what Mr Xia wants in order to placate him.  Thus it seems that it will be in [X]’s best interests for her mother to have sole responsibility for making long-term decisions on her behalf.

   [2] Exhibit 1 – Report of Ms K dated June 2012 at paragraphs 32 and 36

Representation

1. The Mother and the Independent Children’s Lawyer were represented by counsel at the hearing. The Father represented himself. His most recent affidavit was sworn 17 months before the trial. 

Legal principles concerning parental responsibility

1. Parenting orders are governed by Part VII of the Family Law Act 1975. Parental Responsibility is defined in section 61B of Part VII as follows:

   In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

2. These proceedings were commenced in November 2009. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore do not apply.

3. Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or

   b)Family violence.

1. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

2. In the present case, the Independent Children’s Lawyer agrees with

   
   

   Ms K’s recommendation that the Mother have sole parental responsibility. Counsel for the Independent Children’s Lawyer submits that “communication is challenging” and the Mother has a tendency to agree with the Father to placate him, whether or not the decision is in the best interests of [X]. The Mother’s counsel submits that the presumption should not apply because the Court should find the Father has engaged in family violence, but in any event the Court should find that the presumption is rebutted because such an order would not be in [X]’s best interests. The Mother’s counsel submits that the parties have an inability to communicate in a meaningful way as a result of the Father’s inability to accept any point of view different from his own, his poor insight into [X]’s emotional needs, and the Mother’s tendency to agree with the Father to placate him.  The Father, on his own behalf, submits that having sole parental responsibility is “very important to him” to ensure he is “more involved” in [X]’s life. He submits that he is the “better person” to make decisions for [X], particularly financial decisions.

3. To determine this question of whether or not the presumption applies, and/or whether or not an order for equal shared parental responsibility is in [X]’s best interests, the Court must consider the factors in sections 60CC(2), (3) and (4) of the Act, as far as they are relevant. 

THE PRIMARY CONSIDERATIONS   

The benefit to the child of having a meaningful relationship with both of the child's parents

1. As already noted, the parties have agreed that [X] will live with the Mother and spend significant and substantial time with the Father.  During school terms, [X] will spend one week night with the Father in alternate weeks and a 3 night weekend with him each alternate week.  During school holidays, [X] will spend block periods with the Father graduating to full weeks after her first year of school. These arrangements will give the Father the opportunity to engage in [X]’s day care, pre-school and school life during the week, as well as giving [X] the opportunity to enjoy regular leisure time with the Father.  The parties agree that both parties should be a liberty to attend events in which [X] is involved.

2. Whatever decision is made on the question of parental responsibility, I am satisfied that [X] will have the benefit of a meaningful relationship with both her parents while she spends time with the Father in accordance with the arrangement outlined. However, a potential difficulty arises. The Father says that given his currently limited employment opportunities in Australia, he might have to return to China to find work. This would inevitably disrupt the pattern of [X]’s regular time with him, and I find has the potential to affect the strength of [X]’s relationship with him, particularly given her young age.  

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. No issues arise concerning “abuse” or “neglect” by either party.

2. “Family violence” is defined at section 4 of the Act (at the relevant time) as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety. 

3. The Mother describes the Father behaving towards her in an intimidating, controlling and at times verbally and physically aggressive manner during the parties’ marriage[3]. She alleges that the Father assaulted her by grabbing her upper arm in July 2008 and by slapping her on the cheek in early 2009. She alleges that in addition to these assaults, the Father controlled the parties’ finances, held the parties’ joint funds in an account in his sole name, and decided what money the Mother could access, causing her apprehension about her personal well-being. In August 2009, immediately following separation, an Apprehended Violence Order was made against the Father for the protection of the Mother for a period of 12 months. 

   [3] Affidavit of Mother affirmed 19 October 2012, and Annexure H of Mother’s affidavit affirmed 19 October 2012 (statement to police dated August 2009)

4. The Father denies the Mother’s allegations. He denies any form of family violence towards the Mother. 

5. I prefer the Mother’s evidence on this issue for these reasons: 

   a)I found the Mother a frank and honest witness. Her evidence is consistent with the statement she made to police in August 2009, following separation.[4]

   b)In May 2010, the Father’s conduct at changeover at CatholicCare Sydney resulted in the Centre calling for police assistance and denying their further services to the parties.[5] While the Father attempts to justify his behaviour as reasonable given his “unfair treatment” by staff, he acknowledges raising his voice because staff would not agree to extend his time with [X] when the Mother arrived late because of a medical appointment for [X] (who had injured her fingers). I find the Father showed no insight into the impact of his behaviour on [X] or the Mother, the staff or other users of the Centre.  The Contact Centre’s detailed notes[6] describe the Father as follows:

   He was both rude and irrational and did not appear to realise the impact of his tone of voice towards writer in the presence of [X]. …

   …he took a step towards the writer and was talking in an aggressive manner at writer’s face, his face was red, he was talking rapidly and spitting while talking….  By this time Mr Xia [the Father] was very loud, he did not appear to have any insight into his behaviour and its impact on CCS staff and other families…

   …he was shouting in a tirade so that [the case worker] could not be heard. He was standing close to [the case worker] and she was stepping back.

   [Father’s] eyes were red and watery, posture was overpowering [case workers] and arms were raised on a number of occasions.

   c)In March 2012, the Father called the police to [A] shopping mall when the Mother did not agree to delay [X]’s return to her care, as the Father insisted she do.  The Father was arguing with the Mother in front of [X]. The Father’s decision to call police resulted in the police spending an hour reviewing CCTV footage at the shopping mall and to changeover taking 2 hours instead of 5 minutes. The Father says his conduct had no impact on [X], he simply wanted the police to tell the Mother not to talk to him as she did. The police found no basis for the Father’s complaint about the Mother. I find the Father’s conduct unjustified and likely to have caused apprehension in the Mother as to hers and [X]’s well being.

   d)Ms K observed the Father became aggressive when challenged about his point of view.[7]

   e)In cross-examination, when under close scrutiny, I observed the Father demonstrate considerable frustration/anger when faced with others criticising him, or disagreeing with his position.  I have concerns about the Father’s capacity to control his frustration/anger when faced in the future with an opposing view expressed by the Mother.

   [4] Exhibit 3  

   [5] Letter dated 2 June 2010 from Centre to Mother at Annexure 1 of Mother’s affidavit affirmed 19 October 2012

   [6] Exhibit 2

   [7] Exhibit 1

6. At the commencement of her oral evidence, the Mother requested that her current address not be disclosed to the Father. She also asked that changeovers always occur in a busy, public and well-lit location.  While the Mother said she would be happy to give the Father her address if he would agree not to get police involved, and she agreed to an order that she provide the Father with her address after she has moved from her present community housing to private rental accommodation, I am nevertheless satisfied that the Mother holds genuine fears for her well-being and safety in a face to face situation with the Father, and that her apprehension is based on reasonable grounds. I am also satisfied that [X] has been exposed to family violence, and in this regard note the comments of Ms K that[8]:

   [X]…has been exposed to various levels of conflict since her birth and thus her reactions are likely to be overtly less than those of a Child who has had no such exposure…

   [8] At paragraph 20 of Ms K’s July 2010 report – Exhibit 1

THE ADDITIONAL CONSIDERATIONS

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views. 

1. There is no evidence before the Court of [X]’s expressed views, given her young age. 

The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

1. Ms K says [X] has a primary attachment to the Mother and “an appropriately developing attachment” to the Father. She says:[9]

   [X]’s presentation with her mother was that of a much more relaxed and animated child than with her father.

   [9] At paragraph 26 of Ms K's June 2012 report – Exhibit 1

2. Ms K observes the Father to lack child focus and to misread [X]’s behaviour at interview.  She observes his inability to enter [X]’s emotional world which she says[10] could in the future:

   …translate into him being experienced by [X] as an intrusive parent.  That is, prioritising what he believes [X] ought to do, how she ought to act and what she ought to be interested in over what she wants to explore, to know and is interested in.  Intrusive parenting is damaging for children and restricts their emotional and cognitive development and thus is likely to negatively impact on how they relate to others. 

   [10] At paragraph 28 of Ms K's June 2012 report – Exhibit 1

3. I accept Ms K’s assessment.

The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The Mother made clear in oral evidence that she recognises the importance of [X] enjoying a strong loving relationship with the Father. She made it clear that she believes in the parties sharing information and supports the Father making decisions for [X] when in his care, including taking [X] to a doctor located near to him, if he believes “it is right”.  I share Ms K’s view[11] that the Mother is genuinely committed to working towards developing a positive co-parenting alliance with the Father, particularly as neither party has other family living in Australia.  I also accept Ms K’s concern that the Mother has a tendency to placate the Father because of her past experience of his volatile and sometimes aggressive reaction to not getting his own way.[12]

   [11] At paragraph 10 of Ms K's June 2012 report – Exhibit 1

   [12] Ibid

2. I share Ms K’s view that the Father is less willing to support [X]’s relationship with the Mother. For example, when the Mother told the Father that another child at day care had scratched [X], the Father concluded that the Mother was incapable of keeping [X] safe, when the Mother decided not to remove [X] from that day care centre. The Father’s negative attitude to the Mother’s parental competence over this issue strengthened, when the Mother reported to the Father for a second time that [X] had been scratched by another child at the same Centre. I accept the Mother’s evidence that the Father exaggerated the seriousness of the incidents, and was calling her up to 20 times a day despite her lengthy discussions with him about what had happened. I accept her evidence that the Father does not stay on point and does not “receive” or listen to information rationally. This is consistent with observations of the contact centre staff in May 2010[13] and consistent with the Father’s manner, at times, of responding to questions in cross examination. I find that the Father’s response to these incidents a gross overreaction. I do not accept the Father’s justification that he was “immensely frustrated because [X] was attacked by another child.” I accept Ms K’s view that incidents like these unfortunately occur from time to time in day care centres, pre-schools and schools and that the impact on the child involved is likely to be far less serious if a parent manages the incident in a measured, constructive and realistic way.

   [13] Exhibit 2

3. I find that the Father’s decision to call the police when the Mother would not agree to a delay in changeover in March 2012 is another example of the Father’s lack of judgment, lack of insight into the impact of his behaviour on [X] and failure to facilitate and support [X]’s relationship with the Mother.  I agree with Ms K’s view that the Father calling the police in such circumstances was “bizarre” and his overreaction “concerning”.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. This factor does not apply to the issue of parental responsibility. 

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. This factor does not apply to the issue of parental responsibility.

The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

1. Each party has undertaken a parenting course and each party has attended counselling and spent a number of hours at interview with

   
   

   Ms K since mid 2010. However, I find it noteworthy that the Father resisted attending UNIFAM for counselling despite the Court’s Order of 27 July 2010.

2. Ms K assesses the Mother as having developed excellent parenting skills over time, describing her as a “calm, attentive parent”. However, Ms K has concerns about the Father’s parenting capacity. In particular, she finds that he is not child focussed, demonstrates poor insight into [X]’s emotional needs and, despite Ms K’s efforts to assist him, finds he has been unwilling or unable to see things from [X]’s or the Mother’s perspective or to learn from her guidance and advice over a long time. Ms K says the Father demonstrates a poor capacity for self-reflection, becoming more determined in his own position when invited to reflect on it. She found the Father could become aggressive when challenged and has shown an inability to “shift” or compromise during the course of the preparation of her three reports.  She says[14]:

   [14] At paragraph 35 of Ms K's June 2012 report – Exhibit 1

   The writer has experienced great difficulty in assisting

   
   

   Mr Xia to try and look at issues from [X] or her mother’s perspective. Unfortunately it seems unlikely that any significant changes are likely to occur in Mr Xia’s attitude and/or beliefs in the foreseeable future.

3. Ms K says the Father is obsessed with [X]’s cognitive development but it is difficult to say that he supports [X] emotionally. She is critical of the Father’s parenting style as constraining of [X]’s need to explore.  In Ms K’s view, the Father’s style of parenting is “too intrusive” and “is likely to become more intrusive over time.”  Ms K has concerns that [X] may become “very compliant” with the Father and learn not to express herself when in his care. 

4. I agree with Ms K that the Father shows poor insight into [X]’s emotional needs and presents as “totally rigid” in his views about her parenting. He made a number of comments which I find demonstrate his lack of empathy for [X]’s emotional needs and his profound lack of insight. For example:

   a)That the Mother does not support [X] emotionally;

   b)That [X] “has suffered violence” at the day care centre and as a consequence, is at risk in the Mother’s care;

   c)That [X] was not affected by his behaviour at the Contact Centre in May 2010, or at changeover in March 2012 when he called the police. 

5. I find the Father had great difficulty answering questions, preferring to give his detailed point of view on the topic raised. His answers were at times non-responsive. I find the Father’s conduct at the changeover in March 2012, when he called the police, highly inappropriate and likely to have caused [X] considerable distress and confusion. I find his stated reason for calling the police, that he “felt threatened by the Mother’s language” and “wanted them [the police] to tell [the Mother] she should not talk to him that way” as troubling.  

6. These are matters to which I give significant weight.  

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. [X] is of Chinese heritage and each party agrees that [X] should have the benefit of contact with both parties’ extended families who live in China. I find each party is committed to [X] enjoying her Chinese heritage.

2. [X] has been diagnosed with a heart murmur but the Mother says the parties have been given medical advice that it will not affect her development. The Mother describes [X] as having a strong and tolerant personality, and is capable of telling her Mother what she wants. She does not cry easily. She says she is considerate, bright and excellent company. The Father also describes [X] in very positive terms and is delighted with her intellectual development. I am satisfied [X]’s characteristics are not relevant to the question of parental responsibility.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The Father is presently unemployed and has been unemployed for the majority of time since the parties separated. He has therefore provided limited financial support to the Mother for [X].  While an issue arose as to whether the Father was in arrears of child support, there is insufficient evidence on this issue to enable me to make a finding. 

2. I have nothing further to add under this factor.

Any family violence involving the child or a member of the child's family

1. I have already addressed these issues.

Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person

1. There is no current Apprehended Violence Order in place. 

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. I accept Ms K’s assessment that the Mother seeks to placate the Father to avoid confrontation, and that there is a risk she will permit [X]’s interests to be compromised to avoid a volatile reaction from the Father. I therefore find it more likely that the Mother will agree with the Father on any disputed issue, than institute further proceedings, whatever the Court decides.  

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. I have nothing to add under this factor.

Any other fact or circumstance that the Court thinks is relevant

1. The Mother does not include any orders in relation to overseas travel in her Amended Application filed in October 2012.  Neither party refers to [X]’s overseas travel in their affidavit material.  The Father seeks an order in his Response filed in December 2009 for neither party to travel with [X] outside Australia without the written consent of the other party, but did not clarify his position on this issue at hearing.  Presently, [X]’s name is on the airport watch list. This Order was made in December 2009 as a result of the Father’s concerns that the Mother would return to China with [X]. There was very limited cross-examination of Ms K and of both parties on this issue.

2. However, at the end of the hearing, the Mother and the Independent Children’s Lawyer jointly sought an order that the Mother be permitted to apply for a passport for [X] without the Father’s consent, and that the Father be permitted to take [X] overseas for an agreed period after [X] starts school on condition that he provide the Mother with full details of his itinerary and contact details while overseas. The Mother sought an additional order providing for the Father to pay a security bond of $10,000 prior to any such travel. The Father indicated he would consent to this Order, provided that it was mutual as against the Mother. The Mother opposed any security bond being imposed on her.

3. Ms K does not refer to either party’s wish to take [X] overseas in her reports, except to suggest in her June 2012 report recommendations that [X] not be permitted to travel overseas with the Mother, without the Father’s consent.

4. In oral evidence, Ms K says [X]’s relationship with the Father would not be adversely affected if she travelled with the Mother for 3 weeks as long as there was some skype contact and the Father supported the travel. Ms K did not support an order being made for [X] to travel overseas without the Mother before she commences school, and could not say with any certainty as to what age [X] would be able to manage emotionally with going overseas without the Mother as that would depend “entirely on the child’s development and maturity.” She said that a child should not have long journeys “with other than their primary carer before they have the capacity to hold the other parent in their mind and heart, even when that parent is not present”. In Ms K’s opinion, the question of when [X] would be ready to go overseas would need to be determined at the relevant time, and would depend on her maturity and the strength of her relationship with the parent with whom she was travelling. Ms K said that it would not be good for [X] to be taken to “a foreign country with a group of people she has never had any contact with” and that the Father would need to arrange to skype his family on those occasions when [X] was with him so that she could develop a sense of who her relatives were.

5. Ms K said the parties would have very different views on when [X] would be ready to travel overseas with the Father. In her view, the Father would be more concerned about his wish to travel than about [X]’s difficulty being away from the Mother. I agree with Ms K’s assessment which is consistent with my findings on the nature of [X]’s relationship with each party. 

Discussion and Determination

1. There is a current interim order in place for equal shared parental responsibility. This order was made by consent in September 2011 following Ms K’s recommendation in support of that order in her report dated April 2011.  At that time, Ms K said[15]:

   Ms Luu and Mr Xia are committed parents, who are endeavouring to develop appropriate communication strategies to better assist them to co-parent their daughter. They have the ability to co-operate sufficiently for them to have equal shared parental responsibility for [X]. 

   [15] At paragraph 26 of Ms K’s April 2011 report – Exhibit 1

2. Ms K no longer holds that view. 

3. The Mother now seeks an order for sole parental responsibility in accordance with Ms K’s current recommendation, referred to earlier in these Reasons. This is a change in the position from the Mother’s Amended Application filed a month before hearing, in which she seeks an order for equal shared parental responsibility. In her Affidavit sworn in October 2012, the Mother refers to Ms K’s recommendation, but says she does not want the Father to feel he is excluded from [X]’s life and “would like to invite him to establish and development [sic] a healthy bond with [X] on a long term basis”.[16]  I find this statement consistent with her evidence at trial that the Mother wants the Father to have an active involvement in [X]’s upbringing and would like the parties to cooperate to make decisions in [X]’s best interests. However, as already noted I have concerns about the Father’s parental judgment and about the Mother’s tendency to agree with the Father, to placate him, whether or not a decision is in [X]’s best interests. 

   [16] At paragraph 67 of Mother’s affidavit affirmed 19 October 2012

4. I find the Father’s attitude a direct contrast to that of the Mother. The Father tells Ms K[17] that he seeks sole parental responsibility because the Mother is not in paid employment after 5 years in Australia, she uses equal shared responsibility as a means of “fighting” with him, she is “out of touch” and has a different approach to [X]’s emotional and intellectual development. He passionately advocates his position that as the Father, he is the best parent to make decisions about her, particularly financial decisions. While the Father says he is willing to consult the Mother if he is the sole decision-maker, he tells the Court that he would only accept an order for equal shared parental responsibility if he has the authority to make the decision in the event of disagreement between the parties. 

   [17] At paragraph 14 of Ms K's June 2012 report – Exhibit 1    

5. As highlighted by Ms K, the parties have very different parenting styles and have had difficulty reaching consensus on the basis of constructive discussion in the past. Ms K formed the view that the Mother is a capable parent and must be granted sole parental responsibility to avoid either an impasse on major decisions, or the Mother “giving in” to the Father’s point of view to placate him.  As already noted, I find the Father holds rigid views and has shown an inability or unwillingness to countenance any other view, even when given in a professional context. I find the Father uses aggression when faced with opposition to his point of view, with a disregard to the impact of his behaviour on others, including [X].  I find the Father has shown a serious lack of parental judgment in his handling of the incident at the Sydney Contact Centre in May 2010, in his handling of the incidents at [X]’s day care centre in 2010 and 2011 and in his decision to call police to changeover in March 2012. I agree with Ms K that the Father lacks respect for the Mother as [X]’s primary carer and is unlikely to accept any opinion expressed by the Mother which does not accord with his own.  I agree with Ms K’s concerns that the Mother’s desire to placate the Father to avoid confrontation, might lead her to agree to arrangements which are not in [X]’s best interests.[18] In all these circumstances, I have decided an order for equal shared parental responsibility would be unworkable and contrary to [X]’s best interests.  The Mother will have sole parental responsibility, but as submitted by the Independent Children’s Lawyer, the Mother will be required to keep the Father fully informed of her decisions and consider his views on any issue.

   [18] At paragraph 30 of Ms K's June 2012 report – Exhibit 1

6. An issue arises as to [X]’s need for one General Practitioner to manage her health needs, particularly given she has a heart murmur. The parties agree to consult [X]’s present General Practitioner, Dr W at [A] Medical Centre, unless the Mother leaves the [A] area when she will nominate a new General Practitioner, and unless an emergency or the Father assesses [X] to be too ill to travel as far as [A], when in his care.  I have made that order. 

7. In relation to [X]’s overseas travel, I am not satisfied it is in [X]’s best interests to travel overseas with the Father without the Mother once she commences school, as sought by the Mother and the Independent Children’s Lawyer. I find such an order is not supported by the evidence. Ms K recommends that [X] not spend as long as 7 consecutive days away from the Mother until the end of 2014. She recommends against any increase in [X]’s time with the Father in the future. Ms K says that [X]’s emotional readiness for overseas travel with the Father will depend on her development and maturity and a determination of when [X] would be ready to travel overseas would need to be assessed at the relevant time. In the meantime, in Ms K’s view, [X] could manage travel with the Mother for 3 weeks, but only on condition that the Father was supportive of the travel and there was skype contact between [X] and the Father during the period of travel. As already noted, the Father has concerns that if the Mother is permitted to travel with [X] overseas, the Mother will remain away with [X] for a lengthy period. As a result of all of these circumstances, I have decided not to make the order sought by the Mother and the Independent Children’s Lawyer on overseas travel.  I will permit the Mother to apply for a passport for [X] without the Father’s consent to avoid any conflict over that issue. However, [X]’s name will remain on the airport watchlist and each party will be required to apply to the Court to travel overseas, unless the terms of travel are otherwise agreed between them.

8. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for judgment of Sexton FM

Associate:     

Date:             25 January 2013